Evidence of meeting #64 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was case.
A recording is available from Parliament.
4 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
With respect, I think you're being unfair to the quality of the junior officers we have in this country. They're trained to advise soldiers, sailors, airmen and airwomen of the consequences of their choices. I don't think you can be so dismissive.
4:05 p.m.
Conservative
4:05 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
Thank you, Chair.
I have questions for each of you, if time allows. Thank you all for appearing today. It's an important piece of legislation and we appreciate your expertise.
For Monsieur Dugas, you mentioned your view that privates should be allowed to sit on courts martial. You cited precedents and arguments from the civilian system. Obviously that's why we're here today. Developments in the civilian system do influence the military justice system, but the military justice system does have its own particular characteristics.
You will remember that former Chief Justice Lamer asked in his report for the discrepancy in rank in courts martial to be removed or reduced. Our current proposal in this bill would see sergeants sitting on courts martial, not privates, thereby reducing the potential discrepancy in rank quite significantly.
The argument that was put to us as this bill was developed is that it is very much in the spirit of the military justice system, which has to combine rendering justice with attention to discipline, morale, and cohesion within the chain of command within the military as a separate entity with special responsibilities.
Would you not agree, in spite of your own view, that the proposal as contained in Bill C-15 on this front does meet the formal recommendation that Lamer put forward in his report?
4:05 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
I surely would agree that he gave a bit of latitude. I spent two and a half days with Mr. Lamer when he went down to Montreal and Valcartier and interviewed people. He was aware also that those were big changes.
That's why I opened up with the questions where he said that as much as possible, if there is no reason to disregard the Criminal Code and the way the proceedings are done, we should go as close as....
The reason I am uncomfortable with this section is that there is no reason.... I have discussed that. I've been director of defence counsel services for almost eight years and never did I find anyone who would tell me there was a reason not to include a private. As I said, it's a weird situation. The same person we're sending to defend Canadians, Canada, and our values abroad, fully armed, here on the civvy side, that person could do exactly the same job and he would be entitled to do that.
Where I would go, and I would accept what you are talking about, is maybe there are some offences where we would not allow a private or some ranks to be part of a panel, but I fail to see why we treat different ranks differently. Again, there may be a reason. I was never given one, and I fail to see one. I did look into it. We challenged a lot of dispositions in the past and this is there because, again, we argued that too. Again, I cannot find any reason. I'm sorry.
4:05 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
But we agree that the discrepancy in rank would be reduced by the current bill.
Monsieur Hamel, I have a question about your proposal with regard to extending the opportunity of board members to finish their case load beyond the expiration of their terms.
Obviously, we're aware of the recommendation. Obviously, it is being considered. But would you not agree that a change such as that proposed by Lamer and such as that repeated by you today could have implications elsewhere in government as a precedent, that the government in deciding how to frame this legislation is required to analyze and take into account?
4:05 p.m.
Chairperson, Canadian Forces Grievance Board
Thank you for the question.
Mr. Chair, there are many tribunals currently that have that provision in their governing statute. I don't know the recommendation number by heart but the LeSage report also recommended the same thing for the MPCC in his report.
To us, it's mainly a matter of making the right choice and the right decision. It wouldn't be fair for a griever, a Canadian Forces member, to have a case assigned to a board member like a judge, and then suddenly this judge is no longer a judge and the case has not been decided. As the chairperson, I would have to reassign the case to another board member and basically that would mean additional delays. Because every single board member is independent intellectually, he or she would never accept the findings or recommendations of a colleague. Maybe they would take them into account, but he or she would have to start all over again, causing delay to the service member.
4:10 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
I think we would all agree with you that in a court there is a certain practice, but in quasi-judicial tribunals, independent tribunals on the model of yours, there is a variety in the practice. Would you not agree there are some other federal tribunals where such extensions are not given?
4:10 p.m.
Chairperson, Canadian Forces Grievance Board
There are some tribunals where such provisions do not exist. However, I will just restate that
the well-being of a Canadian Forces member, it is unfair to impose that.
Actually, even for the board to impose.... I had my hands tied basically for three months where I could not assign cases to three board members. They were there, sitting, and I could not employ them, and they were valuable resources. They could have helped get some of these soldiers' cases reviewed and recommendations made to the Chief of the Defence Staff, and if we're talking about something like a $100,000 refund or remission, that's a lot of money that would have to be reassessed again.
So it's all in fairness to everyone. We're not a court. We realize that. But in all fairness to the soldiers and the Chief of the Defence Staff, they deserve a decision in a timely fashion.
4:10 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
We fully understand your view, but can you confirm for the committee that a number of other recommendations that you made stem from Justice LeSage's report, a report tabled in Parliament in June 2012 and still being reviewed by the government?
4:10 p.m.
Chairperson, Canadian Forces Grievance Board
Yes, I will confirm that these three outstanding recommendations by Justice Lamer have been ongoing for quite a long time. Since I've been the chair, I've been pushing for those to go through. They're still under review, but have been accepted by successive governments. They were all agreed to and just not in the bills, in successive bills actually.
4:10 p.m.
Conservative
4:10 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Thank you, Chair, and thank you to each one of you.
I thought Dean Holloway articulated very well the differentiation between a civilian system of justice and a military system of justice. I thought in that respect it was very helpful. In effect it sets up a test. The test is on these changes and any other legislative changes, either on the balance of probabilities or beyond a reasonable doubt. Whatever test you want to choose, what is the basis for the differentiation in the system? Much as Justice Lamer said, unless there's a very good reason to be different, it should be the same.
So applying that test, and I'll direct the question to Dean Holloway and to Mr. Dugas, with respect to the empanelment of a jury in a court martial, it seems to me that the government has sort of taken a half-pregnant approach. Either you go with only captains who can sit on jury trials for captains, or you say all ranks can sit on jury trials for any rank.
By dropping it to sergeant, you drop off a significant portion of your population. So, Dean Holloway, make the government's argument here.
4:10 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
First of all, it's not a jury trial. The function of the members of a panel in a court martial is not to find facts like a jury does. It has a different role from a civilian jury. It may seem pedantic on my part, but it's critical to conceiving the way in which a court martial is meant to work. It's one of the challenges, too, by the way of comparing our system with the system as it operates in Great Britain or Australia. We may use the same titles, but they can mean different things. That's the first thing I'd say.
I'm not sure our system of civil juries in Canada today is particularly covered in glory. There's that old joke that the people who determine your guilt or innocence are the people who are too stupid to be able to evade jury service themselves.
4:15 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
I'm sure we're not going there, but to suggest the jury system as we have it in Canada today represents the apogee....
4:15 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
It may not be the gold standard, but it is the standard.
4:15 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
It is the standard, but I guess the point is to be an effective member of a court martial, I think you have to be able to bring a certain sense of the big picture. Remember, the context of the system of justice is discipline, unit cohesion, and fighting effectiveness. That requires a certain degree of seasoning. You have to have been around awhile.
4:15 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
If a private has been around for 15 years, is he not capable of...?
4:15 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
We won't have any privates—
4:15 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I know. In this system we won't, but you're saying that a private who has been around for 15 years won't be able to....
4:15 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
There aren't such privates in Canada any longer, unless they have been reduced in rank. Maybe master corporal is the right rank, or maybe it's warrant officer, but someone other than a private who has been in the service for 18 months or two years or less, I'm not sure they will have the right level of war experience.
It's the same reason second lieutenants or officer cadets don't serve as panel members in courts martial.
4:15 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Lieutenant-Colonel Dugas, I'm interested in your reaction.
4:15 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
I'm not sure I understand that the meaning of the role of the members of the panel is not the same as the jury, because I have been in both rooms, and their role is exactly the same. They are fact-finders in the end, and they decide if the person is guilty or not.
I like your approach because I've met privates who have decided to remain privates up to corporal because they want to stay on one base in particular because the family is there and the kids are there. I've met privates and master corporals who have master's degrees, but they are happy to be there because they are not using their master's degrees where they come from. We have very good people there.
I don't understand why you have to be in the forces for three years to be able to decide on some issues of a case that have nothing to do with military issues.
4:15 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Regrettably, I have very little time.
Let me switch to the board for a second, and the three main things you're interested in.
It does seem to be an incredible waste of resources that for the last three months of your appointment you can't sit on cases and make decisions. The government's argument, as articulated by the parliamentary secretary, seems to be that this is the way other boards do it. The way other boards do it may be wrong.
Is there any other compelling reason why a board member who is about to retire can't finish his caseload?
4:15 p.m.
Chairperson, Canadian Forces Grievance Board
In 2011 when I appeared, one of the arguments put forth by one of the members was that this could be perceived as a mechanism for one to forever extend a membership within an organization. I disagree with that profoundly in that, first of all, every board member doesn't know...and we're only talking here about cases that would have been assigned prior to a mandate being at the expiry date, which in the case of our board would mean technically no more than two to three months. So, if my term were to end today, and I had a case in my hands today that had not been decided, I could automatically be extended for another two to three months.
